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2015 DIGILAW 2093 (MAD)

S. Janakibanu v. J. Siva Kumar

2015-04-30

V.M.VELUMANI

body2015
JUDGMENT :- 1. The Transfer Civil Miscellaneous Petition has been filed by the petitioner/wife to withdraw HMOP No.12 of 2007 pending on the file of Family Court, Madurai, either to dispose of the case itself or determine the said question of law and return the case to the Court, from which it has been so withdrawn so as to enable the said Court to proceed to dispose of the case in conformity with the judgment of this Court. 2. The petitioner herein is the wife and the respondent is the husband. The marriage was solemnized between the petitioner and the respondent in the year 2000. In the wedlock, a male child was born. Now, he is studying 9th standard. Differences have arisen between the parties. The petitioner gave a complaint against the respondent and his family members under Section 498(A) and 506(i) of IPC and Section 4 of Dowry Prohibition Act and the same was registered in Cr.No.4 of 2007 under Section 498(A) of IPC and Section 4 of TNPWH Act and the charge sheet was filed in C.C.No.74 of 2007 before the learned Judicial Magistrate No.I, Madurai. In the above said case, the respondent and his family members were acquitted by the learned Judicial Magistrate No.I, Madurai. Aggrieved against the said acquittal, the petitioner has filed Crl.R.C.(MD)No.545 of 2012, before this Court and the same is pending. 3. The respondent filed H.M.O.P.No.12 of 2007 before the Family Court, Madurai, for divorce on the ground of cruelty on the part of the petitioner. The petitioner filed I.A.No.395 of 2010 in H.M.O.P.No.12 of 2007 for maintenance. According to the petitioner, in spite of maintenance being ordered, the respondent has not paid the maintenance. 4. The respondent has filed C.R.P.(MD)No.1019 of 2014 before this Court for speedy disposal of H.M.O.P.No.12 of 2007. This Court, by the order dated 30.04.2014, directed the trial Court to dispose of H.M.O.P.No.12 of 2007 as expeditiously as possible, preferably by the end of July 2014, as the matter is relating to the year 2007. 5. The petitioner filed Rev. Appl (MD) No.111 of 2014 to review the order, dated 30.04.2014 on the ground that no notice was issued to her. 5. The petitioner filed Rev. Appl (MD) No.111 of 2014 to review the order, dated 30.04.2014 on the ground that no notice was issued to her. This Court, by the order dated 08.08.2014, allowed the Review Application by recalling the order made in C.R.P (MD) No.1019 of 2014 dated 30.04.2014 and heard C.R.P. After considering all the materials on record and the arguments of the learned counsel for the parties, this Court directed the Family Court to dispose H.M.O.P.No.12 of 2007, as expeditiously as possible, in any event, not later than 30.01.2015. Considering the fact that H.M.O.P., is of the year 2007. 6. The petitioner filed I.A.No.558 of 2014 in H.M.O.P.No.12 of 2007 before the Family Court, Madurai, under Section 10 of CPC to stay of all further proceedings in H.M.O.P.No.12 of 2007 on the ground that Crl.R.C. (MD) No.545 of 2012 filed by the petitioner is pending before this Court. The learned Family Court Judge considering all the materials on record and dismissed the petition in I.A.No.558 of 2014. Aggrieved against the said order, the petitioner filed C.R.P. (MD) No.219 of 2015 before this Court. This Court, by the order dated 09.03.2015 dismissed the said C.R.P., holding that both the H.M.O.P.NO.12 of 2007 and Crl.R.C.No.545 of 2012 can go on as a parallel proceedings. This Court, considered the scope of Section 10 of CPC and earlier Judgments on this point, dismissed the C.R.P. 7. The petitioner filed Special Leave Petition (Civil) C.C.No.10174 of 2015 against the order passed in C.R.P. (MD) No.219 of 2015. At the time of hearing, the learned counsel for the petitioner sought leave to withdraw the SLP. The Hon'ble Apex Court by order, dated 10.04.2015 dismissed the same as withdrawn. 8. After dismissal of the said SLP, the petitioner has filed a petition before the Family Court, praying to defer the judgment in the H.M.O.P.No.12 of 2007 until the final decision arrived in Crl.R.C.(MD) No.545 of 2012 and pass judgment in H.M.O.P.No.12 of 2007 along with H.M.O.P.SR.No.1536 of 2015 filed by the petitioner. The learned Family Court Judge returned the said petition. Now, the petitioner has come out with the present Transfer petition. 9. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 10. The learned Family Court Judge returned the said petition. Now, the petitioner has come out with the present Transfer petition. 9. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 10. According to the petitioner, this Court has got power under Article 228 of the Constitution of India to transfer the case from the Sub Court, if a substantial question of law as to the interpretation of the constitution, the determination of which is necessary for the disposal of the case. 11. The learned counsel for the petitioner contended that substantial question of law with regard to interpretation of Constitution of India is involved to decide H.M.O.P.No.12 of 2007. According to the learned counsel for the petitioner, if H.M.O.P.No.12 of 2007 is decided before the disposal of the Crl.R.C. (MD)No.545 of 2012, the petitioner will be put to irreparable loss and hardship. The Family Court may hold that the petitioner has given false criminal complaint against the respondent and his family members. Further, the petitioner has filed H.M.O.P.SR.No.1536 of 2015 and that also must be decided along with H.M.O.P.No.12 of 2007. This contention of the learned counsel for the petitioner, has no force. Already the petitioner has filed a petition under Section 10 of CPC for stay of H.M.O.P.No.12 of 2007 pending disposal of Crl.R.C. (MD)No.545 of 2012. This Court, in C.R.P. (MD)No.219 of 2015, considered the said issue in detail and dismissed the said contention of the petitioner. The petitioner withdrew the Special Leave Petition (Civil) C.C.No.10174 of 2015 filed by her against the order passed in C.R.P.(MD)No.219 of 2015. At the time of hearing, the learned counsel for the petitioner contended that the Hon'ble Apex Court orally instructed the petitioner to file a petition under Section 151 C.P.C., but there is no such observation in the order of Hon'ble Apex Court. 12. Now, in the Transfer Civil Miscellaneous Petition, the learned counsel for the petitioner has contended that whether H.M.O.P.No.12 of 2007 can be disposed, before the disposal of Crl.R.C (MD) No.545 of 2012 involves substantial question of law, involving interpretation of Constitution of India. This contention has no merits. As per the judicial pronouncements, both the Criminal case and Civil case can be proceeded simultaneously. There is no bar for the parallel proceedings. This contention has no merits. As per the judicial pronouncements, both the Criminal case and Civil case can be proceeded simultaneously. There is no bar for the parallel proceedings. This Court, by order dated 09.03.2015 made in C.R.P.No.219 of 2015, has held that both the Civil case and the Criminal case can be proceeded simultaneously. Therefore, I hold that no substantial question of law has arisen in deciding H.M.O.P.No.12 of 2007, warranting withdrawal of the said case to the file of this Court for deciding the matter. 13. The learned counsel for the petitioner relied on the judgment reported in 2014 SCC Online SC 915 (K.Srinivas v. K.Sunitha) the ratio in the said judgment has no relevance to the issue involved in the present Tr.C.M.P. 14. For the above said reasons, the Transfer Civil Miscellaneous Petition is dismissed. No costs. Consequently, connected M.P(MD) No.1 of 2015 is dismissed.